157 Ga. 67 | Ga. | 1923
(After stating the foregoing facts.)
Should the demurrer have been sustained on the ground that the property sought to be recovered was realty for which an actioD of trover would not lie ? The suit is for the recovery of “certain telephone sets, open wire, cross-arms, brackets, anchors, transportation brackets, poles, telephone equipment, supplies, tools and instruments, switch-boards, and other property” of the plaintiff. None
The defendant specially pleaded that all of the property sued for by the plaintiff is either connected with or attached to its plant, or is in its office or on its premises, and is actually used or is necessary for use in the operation of its plant, and that to permit the plaintiff to recover would disrupt the operation of its plant and prevent the company from discharging its duties to the public, for which reason the plaintiff had no right to maintain this action; and for this reason the defendant prayed that the petition be dismissed. Conceding that the plaintiff- cannot recover from the telephone company property attached to its plant and “which is absolutely essential to the complete performance of the public duties required of it,” on the ground that “the public is deeply and seriously interested” therein, a question which we will have to deal with later in this opinion, we have seen, in dealing with the demurrer to the petition, that this suit was not brought solely for the recovery of property so situated, but in part to recover property not attached to the plant and not actually used in the operation thereof, although such part of this property could be used in such operation. Eor this reason the proof to sustain this plea is not sufficient, and does not set up a good defense to the whole, if any, of the plaintiff’s action; and the action should not have been dismissed upon proof of such facts under said plea.
Subject to its demurrer and the above plea, the defendant filed an amendment to its answer, in which it sought to have an equitable accounting between it and the plaintiff, and to have all matters in dispute between them, growing out of their lease contract, adjudicated and settled, so as to prevent a multiplicity of suits. If either the demurrer or plea had been a good defense to the whole of plaintiff’s action, then the plaintiff’s action should have been dismissed, and with the dismissal of plaintiff’s petition would have gone the defendant’s plea and answer as amended; but we have seen that neither presented a defense in toto to the action. Eor this reason, the petition should not have been dismissed upon demurrer nor upon the proof submitted to sustain said plea. This
This brings us to consider the rulings of the trial judge upon the exceptions to the auditor’s findings. Did the court err in refusing to recommit the report of the auditor for the purpose of having him pass upon the question of plaintiff’s right to hire of the property sued for? In his petition plaintiff alleged that the hire of the property sued for was worth $1,000 per annum; but on the hearing before the auditor he introduced no evidence on this subject. Under such circumstances the plaintiff- will be treated as having abandoned his claim for hire; and the failure of the auditor to deal with this matter does not furnish proper cause for recommitting the report. Such omission is not a proper case for such recommittal. Civil Code (1910), § 5139. An auditor’s report will not be recommitted for the purpose of having the auditor report on a demand of a plaintiff in support of which he introduced no evidence. If the plaintiff wished to insist on this claim, he should have offered proof to sustain it during the hearing before the auditor, and caused the auditor to rule thereon. He cannot omit to do this, wait until the auditor has made his report, and then move to have the case recommitted for further hearing and report on such claim. He will be held to.have abandoned his claim, in the absence of any showing excusing his failure to press it before the auditor during the progress of the case. This makes it unnecessary for us to decide whether the plaintiff would be entitled to recover hire for the property sued for, under the facts of this case.
The plaintiff moved to strike the defendant’s answer, and to rule out all evidence introduced in proof of its allegations, on the ground that a claim for damages arising from a breach of contract cannot be allowed under a plea of recoupment in defense to an action of trover. The auditor overruled this motion, and to this ruling the plaintiff excepted. The trial judge overruled this
The contract by which the plaintiff leased from the defendant its telephone plant contains this provision: “Should said party of the second part [plaintiff] at any time during the period of this lease construct or acquire lines connected with said plant, such new lines so constructed and acquired by said party of the second part shall be and remain the property of said party on the expiration of this lease, but said party of the first part [the defendant] shall have the right at that time to acquire from said party of the second part . . all of such lines so constructed or acquired, upon the payment to him in cash such sum as would represent the actual value of such lines.” The meaning of the word “lines,” in this provision, became a matter of .acute dispute between the parties. The auditor found that “lines,” as so used, meant all additions and acquisitions to the plant, not used for maintaining or replacing, parts thereof, but for the purpose of enlarging and extending, the original system. To this finding the defendant excepted on the ground that “ Tines’ cannot be construed to mean ‘ all additions and acquisitions to the original telephone plant,’ for the reason that
Two questions, which are strongly and ably stressed in the briefs of counsel, one whether extensions and additions to the lines of the telephone company, constructed or acquired by the plaintiff and connected with the company’s plant, were realty for the recovery of which trover will not lie, and the other whether trover will lie to recover such extensions and additions when they
The trial judge erred in sustaining the defendant’s exceptions of law. He should have held that the decision of the exceptions to the findings dealt with in the last division of this opinion was unnecessary, and that all othe.r rulings to which the defendant excepted were correct. The trial judge likewise erred in sustaining the demurrer to the plaintiff’s petition, in dismissing the same, and in taxing all the costs against the plaintiff.
Judgment reversed.